Article 264 chinese patent law [New Research]

Last updated : Aug 20, 2022
Written by : Tad Gagan
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Article 264 chinese patent law

Are Chinese patents enforceable?

There is no issue regarding the unenforceability of a patent in China, and all patents are enforceable unless invalidity is proved.

What Cannot be patented in China?

In China, inventions related to animals and plants are hard to patent. Animal species and plant varieties are not patentable. An “animal” includes an animal individual, a transgenic animal individual, an embryonic stem cell of an animal, a germ cell, an oosperm, an embryo, etc.

Does China respect international patents?

China has acceded to the major international conventions on protection of rights to intellectual property. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright, and patent.

Are Chinese patents valid in Australia?

A Chinese design patent protects the visual appearance of a product and is equivalent to an Australian registered design. In order to be valid, the design must be new, and substantially different from prior designs or combinations of prior designs.

When can you oppose a patent in China?

How can I challenge a granted patent in China? The opposition system was abolished in China in 2001. The only way to a challenge a granted patent is through the invalidation procedure. Requests for invalidation can be filed at any time, even after the patent has expired.

How do Chinese patents work?

China has a first-to-file patent system where patents are granted to the first person who files an application for an invention. In general, an application for a patent must be filed prior to any public disclosure of the subject invention.

Do patents apply in China?

A patent may be filed directly in China with the help of a patent agency or patent attorney; An international patent application can be filed under the Patent Cooperation Treaty (PCT), indicating China as one of the designated states.

How long do Chinese patents last?

In China, since 1993 the term of a patent for invention (equivalent to utility patent) has been 20 years. The Fourth Amendment to the China Patent Law (“Amended Patent Law”) adopted in October 2020 introduced a brand-new Patent Term Extension (PTE).

Do Chinese have patents?

China has led the world in number of patent filings since 2011, according to the World Intellectual Property Indicators 2020 report from the World Intellectual Property Organization (WIPO). In 2019, WIPO reports, China filed 1.4 million patents, or 43.4 percent of the world's total patent applications that year.

Does China protect intellectual property?

China has a complete legal system for the protection of intellectual property rights. China's intellectual property law stipulates the legal responsibilities to be borne by anyone who violates the law, including civil liability, criminal liability and exposure to administrative sanctions.

Why is it hard to enforce intellectual property rights in China?

Foreign firms have long complained that enforcing their intellectual property rights in China is difficult due to local judicial protectionism, challenges in obtaining evidence, small damage awards, and a perceived bias against foreign firms.

Are US patents valid in China?

* That is, these forms of intellectual property only provide protection in the country in which they were registered. This means that trademarks and patents registered in the United States offer no protection in China.

Is a US patent valid in Australia?

Patents are only enforceable within the territory they were granted. For example, a US patent will only provide protection for your invention within the USA. Hence, if you want your foreign patent to be enforceable in Australia, you must register here as well.

How much does a design patent cost in China?

Patents For Design The official fee for filing an application is 500 RMB along with 3200 RMB as attorney charge.

How long does a patent last in Australia?

A standard patent gives you long-term protection and control over an invention. It lasts for up to 20 years from the filing date of your application (or up to 25 years for pharmaceutical substances).

How long does it take to file a patent in China?

Substantive examination must be initiated within three years of the filing date upon request by the applicant. In 2016, the average time for a patent to be granted by CNIPA was 22 months. However, the process may take longer depending on the complexity of the application.

Does China have provisional patent applications?

In such a case, Chinese patent law has provided “provisional protection” for the published patent application, i.e. “After the publication of an application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee.”

How do Chinese protect patents?

  1. Register your IP.
  2. Perform Takedowns on Chinese Websites.
  3. Register with Customs.
  4. Engage a Brand Monitoring Service.
  5. Monitor Chinese TM Filings.

Which country has highest patent?

In 2020, China had the most patent grants worldwide with 530,127 patents granted to resident and non-resident companies or organizations. The United States followed with 351,993 granted patents the same year.

Is there patent term extension in China?

Patent Term Extension in China is now possible for pharmaceutical patents. On June 01, 2021, the fourth amendment of Patent Law in China entered into effect. This amendment includes significant changes, such as the introduction of Patent Term Extension (PTE) for pharmaceutical patents (Article 42(3) of the Law).

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Article 264 chinese patent law

Comment by Deangelo Brandow

biotechnology is going to be key to end the pandemic firms are producing thousands of inventions for that purpose but it's actually government who decides who gets a patent and who doesn't essentially government decides who is able to make money out of an invention and who won't be allowed to make money out of that invention that gives government a lot of power and we have reasons to suspect that governments and we have evidence in fact showing that governments are biased against foreign inventors in other words they might forbid entry into the markets to foreign inventors in china we have reasons to suspect that the discrimination might be intentional and the reason is that when we look at the technologies around being the most discriminated these are actually technologies listed in the chinese technology development plan and they include biotechnology and telecommunications among others in the united states we also find a 10 discrimination against foreigners however as we start accounting for more and more explanation well the biases vanish and so that makes us believe that this combination might be more unintentional than intentional a patent protects an invention from imitation essentially which means that if you don't have a patent over a specific invention you simply are not able to make money out of that invention or you will make much less money in fact and so ultimately if you keep inventing without patent protection at the end well you might just not make enough money and you might decide to stop investing in innovation and so at the end you know the whole innovation ecosystem we might just unravel discrimination is actually against the law so there is something called the national treatment principle in international patent law which gives equal treatments to foreigners and local and so discrimination against foreigners is just a violation of these international treaties and we encourage bodies like the wto the world trade organization to enforce or to better at least better monitor the enforcement of the national treatment principle

Thanks for your comment Deangelo Brandow, have a nice day.
- Tad Gagan, Staff Member

Comment by Cinda

thank you for joining us today for Kristian Richardson's first webinar in our new IP perspectives you was in China webinar series my name is Tom Russell ah which I'm very pleased today to be joined by a colleague from the Han kun law firm Yan Yan Wang I'm also joined by my colleague yaw Wang and associate in the Washington DC office of Fish & Richardson for those of you are in our state our biographies will appear on the side of your screen this series will focus on IP issues affecting transnational portfolios with both US and Chinese attendees future future webinars in the series will cover ITC issues damages law industry specific topics such as patents for financial services and life sciences please keep an eye on your inbox for those invitations and you can follow us on Twitter for updates at fishing Richardson today's webinar were one for one hour and include question-and-answer period at the end of the program you may ask questions at any time throughout the program by clicking on the Q&A widget at the bottom of your screen to submit your question we'll do our best to answer them at the end of the presentation time permitting please also feel free to contact us personally after the webinar if that's easier before we get started I should remind you that the content of this presentation is for educational purposes only and there's not necessarily reflect the opinions of frisson Richardson and is also not intended to address every court or every situation thank you and as we mentioned this is an inaugural webinar series for us one and certainly that we aim to build upon the success we've enjoyed with with our other webinars including a litigation and post post grant endeavors and it's a little bit different than maybe some of our other webinars we really try and tackle a very particular topic in depth instead in this case where we try and maybe speak to some common perceptions and really try and give the audience a better sense of what were the concerns is commonly understood maybe some time back and really try and give this audience a sense of what the most current trends are and what might be in the works either is proposing some of the laws and regulations that might further revise and address expectations as related to pursuing an electro property in China itself so I'm pleased again to be joined by my colleagues yeah one of the hand Kuhn law firm with that we'll jump right into the meat of the matter again please know CLE is available for us attendees in some jurisdictions we will be releasing the CLE code near the end of the presentation so today we hope to speak and provide an overview of prominent US concerns like to provide you a brief background on Chinese patent practice we'll take a brief survey of recent news headlines will offer a comparative analysis of some prominent US concerns as interpretated in China as interpreted in China will also speak to some differences between US and Chinese priorities we'll also offer an upcoming overview of the upcoming topics maybe we'll start just to develop a common understanding would have been some of the more recent concerns as articulated in a 2000 hole at a US Patent and Trademark Office report identifying the following concerns for US companies seeking to enforce intellectual property rights in China these concerns included concerns over the Chinese pet legal regime rule of law problems issues related to evidence collection recognition and preservation effectiveness and enforcement of remedies and administrative enforcement and so walk through and walk through some of these concerns in greater detail in the next slide and really give this audience a sense of the nuanced nature the concerns that were articulated in indeed was not seen as a broad this report was not seen as a broad expression of concerns but rather dealt with some very particular topics that they believed us rights holders would would want to see addressed and the years to come as a as we witness the US companies continue to explore an electric property protection in China speaking of these higher level of concerns in greater detail some of the concerns as relates to the Chinese pet legal regime is simply the role of utility models and I think the among the most prominent concerns was really a lack of appreciation for US companies on and whether or not utility model should be pursued how they play out in practice my assessment has to be one of education more than anything else another question really related to will love questions in particular what's the basis as the cases filed the case initially has to be accepted what was the basis for that acceptance the report also discussed the thoroughness of written decisions particularly in appeals and in really desire into having a independent basis of review from a a lower court decision finally there are some questions as to what the limited use of discovery was especially for some of the injunctive of the relief that would be desire Li ideally sought earlier in a case how could discovery the better available relative to some of the pleadings requirement that would be sought after for in order to seek a preliminary injunction finally there were some questions over the to scope of damages some of the difficulty in obtaining injunctions and and finally someone other questions really spoke to the low threshold required to initiate invalidity proceedings once a litigation has begun and so with that I'll I'll really turn it over to our good friend here oh yeah and really let him speak to speak to his assessment on and you know what are the concern you know are these still concerns and have they been addressed and what are we seeing for trends so thank you young thank you Tom and thank you yalla and thank you for giving me this opportunity to share my experience practicing IP law in China with you and they're talking about the US concerns I totally agree with Tom that on this slide number six all these the topics there are legitimate concerns for multinationals in particular for US companies doing business in China I will give my high-level comment to each of them and if you have any specific questions feel free to interrupt me at any time or feel free to contact me afterwards regarding China's patent legal regime the role of utility models is the general designer for developing country so the general idea is for utility model patent it will not be examining the substantively and the obvious needs requirement is going to be lower for utility model patents so only offensive side of from a multinationals perspective yuria the multinational companies will get both utility model patents and the companion in management patents you will get the acidity model pad patents a faster because it's not examining the substantively but as soon as you get imagine patent the utility model patent will be deemed abandoned automatically so that's only offensive side on the defensive side a lot of smaller companies in particular Chinese companies they will choose to file for the utility model patents only but you can imagine that these patterns are not that a stable if they rely on th

Thanks Cinda your participation is very much appreciated
- Tad Gagan

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